Tag Archives: Off-the-Clock

This case was before the Sixth Circuit on the plaintiff’s appeal of the trial court’s order awarding defendants summary judgment on liability. As explained in more detail in the court’s decision, the defendants relied on their own time and pay records, and testimony from plaintiff’s former supervisor, in which they denied that plaintiff ever worked more than 40 hours in a workweek. Although the plaintiff testified that the records were not accurate and that he typically worked approximately 58 hours per week, the court below adopted the testimony of the defendants that plaintiff never worked in excess of 30 hours per week, and thus was properly paid $10 per hour (or $300 per week). The Sixth Circuit reversed and remanded, and applied well-settled law regarding the parties’ respective burdens at the summary judgment stage.

The court framed the issue before it as follows:

This appeal raises one simple question: Where Plaintiff has presented no other evidence, is Plaintiff’s testimony sufficient to defeat Defendant’s motion for summary judgment?

The Sixth Circuit held that an FLSA plaintiff’s testimony alone is sufficient to defeat a defendant’s motion for summary judgment:

We hold that it is. Plaintiff’s testimony coherently describes his weekly work schedule, including typical daily start and end times which he used to estimate a standard work week of sixty-five to sixty-eight hours. The district court characterized this testimony as “somewhat vague .” (R. 26, Opinion and Order, Page ID # 475.) However, while Plaintiff’s testimony may lack precision, we do not require employees to recall their schedules with perfect accuracy in order to survive a motion for summary judgment. It is unsurprising, and in fact expected, that an employee would have difficulty recalling the exact hour he left work on a specific day months or years ago. It is, after all, “the employer who has the duty under § 11(c) of the [FLSA] to keep proper records of wages [and] hours,” and “[e]mployees seldom keep such records themselves.”Anderson, 328 U.S. at 687. Defendants emphasize the fact that Plaintiff’s testimony is inconsistent with the allegedly contemporaneous timesheets Defendants provided to the court. But these timesheets do not amount to objective incontrovertible evidence of Plaintiff’s hours worked. Plaintiff denies the validity of these timesheets, which were handwritten by Defendants, and contends that Defendants sanctioned his overtime work. Whether his testimony is credible is a separate consideration that is inappropriate to resolve at the summary judgment stage.

Putting this case in perspective, the Sixth Circuit discussed its prior jurisprudence regarding the same issue:

We have previously found that a Plaintiff’s testimony can create a genuine issue of material fact foreclosing summary judgment in a lawsuit brought under the FLSA. In O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567 (6th Cir.2009), we considered a collective action brought against an employer for underpayment of wages in violation of the FLSA. Although we affirmed the district court’s decertification of the collective action in O’Brien, we considered the district court’s grant of summary judgment as to the lead plaintiffs. Plaintiff O’Brien alleged both that the defendants altered her time records and that she was required to work off-the-clock. With respect to O’Brien’s “off-the-clock” claim, the defendants argued that they were “not liable under the FLSA because there is no evidence that defendants knew that O’Brien was working without compensation.”Id. at 595–96. Nonetheless, despite the lack of corroborating evidence, we held that the district court “erred when it granted defendants’ motion for summary judgment as to O’Brien’s ‘off the clock’ claim,'” since the plaintiff’s own “deposition testimony clearly creates a genuine factual issue, because she asserts that [the defendants] knew that she was working off the clock.”Id. at 596. The O’Brien court reached this conclusion despite the plaintiff’s at times contradictory testimony. Id. at 595.

This holding is consistent with our decision in Harris v. J.B. Robinson Jewelers, where we explicitly found that a plaintiff’s testimony is itself sufficient to create a genuine issue of material fact. 627 F.3d 235 (6th Cir.2010). In Harris, we considered the appropriateness of summary judgment where a plaintiff testified that her jeweler had replaced a diamond in her ring with a smaller, less-valuable diamond. In that case, we reviewed the district court’s decision to exclude the plaintiff’s testimony as well as its decision to exclude the affidavits of three corroborating witnesses. Notably, we determined that “[the plaintiff’s] testimony alone is sufficient to create a jury question regarding the alleged replacement [of her diamond].”Id. at 239 (emphasis added). The district court in this case disregarded the applicability of that determination to the case at hand, focusing instead on the fact that the Harris court also deemed admissible the sworn affidavits of the three corroborating witnesses. Such disregard was mistaken. Our opinion in Harris clearly states that, regardless of the three additional affidavits, the plaintiff’s testimony was itself sufficient to create a genuine issue of material fact.

The same principles at work in Harris and O’Brien apply here. Despite the lack of corroborating evidence, Plaintiff’s testimony is sufficient to create a genuine dispute of material fact that forecloses summary judgment at this juncture. Defendants cite to no Sixth Circuit precedent for the opposite conclusion; rather, they rely on three district court opinions and a handful of opinions from other circuits. None of these cases counsel in favor of ignoring clearly applicable Sixth Circuit caselaw. The district court cases cited by Defendants are neither precedential nor instructive in the present case, and we note that this Court did not have an opportunity to review their reasonableness on appeal. Nor do the out-of-circuit cases cited by Defendants belie the applicability of our own Circuit’s on-point precedent and the basic tenets of summary judgment law to the case at hand.

As such the court concluded:

On summary judgment, all reasonable inferences must be made in favor of the non-moving party and, as we have held in the past, a plaintiff’s testimony alone may be sufficient to create a genuine issue of material fact thereby defeating a defendant’s motion for summary judgment. This is such a case. Here, Plaintiff put forward testimony that contradicted that of Defendants, describing his typical work schedule with some specificity and estimating that he worked sixty-five to sixty-eight hours a week on average. This contradictory testimony creates a genuine issue of material fact.

We therefore REVERSE the ruling of the district court granting summary judgment in favor of Defendants and REMAND the case for further proceedings consistent with this opinion.

This case was before the court following an order that conditionally certified the case as a collective action. The plaintiffs alleged that they performed uncompensated work prior to the commencement of their shifts and during their unpaid meal breaks. They also alleged that the defendant underpaid employees by failing to include certain required payments in the regular rate of pay when it calculated overtime. The plaintiffs claim that, by failing to compensate employees for pre-shift work and work performed during unpaid meal breaks and by miscalculating the regular rate of pay, the defendant violated the Fair Labor Standards Act (“FLSA”). In the Memorandum Opinion in which it conditionally certified the case, the court also ordered the parties to confer and attempt to submit agreed-upon-notice and consent forms. Whereas the plaintiffs proposed a relatively basic consent to join form, the defendant took the position that each opt-in plaintiff should be required to specifically opt-in to one or both of the specific claims alleged by the plaintiffs. Rejecting the defendant’s proposed approach and adopting that of the plaintiffs- whereby opt-ins could simply opt into the case as a whole- the court explained:

T–Mobile urges the court to adopt its proposed consent form. It asserts that the form merely attempts to obtain otherwise discoverable information from the opt-in plaintiffs concerning the specific claims they intend to assert. (Docket No. 108, at 2–3.) T–Mobile adds that gaining this information from the consent form will reduce the costs of written discovery. (Id. at 3.)

The plaintiffs raise numerous objections to T–Mobile’s proposed consent form. Chief among them is that the form is contrary to the plain language of the FLSA. (Docket No. 111, at 2.) The remaining objections raised by the plaintiffs include that T–Mobile: (1) is attempting to re-litigate the issue of conditional certification through the questions contained in its proposed consent form; (2) seeks information from opt-in plaintiffs lacking the benefit of counsel that is properly obtainable through discovery; and (3) urges the approval of a consent form that will confuse opt-in plaintiffs. (Docket No. 111, at 5–6, 8–13.) The plaintiffs thus request that the court adopt their proposed consent form, as they contend that it is clear, concise, and lacks any misleading information. (Docket No. 111, at 7–8.)

Having considered the parties’ contentions, the court finds that the text of the FLSA’s statutory provisions settles the instant dispute. The relevant provision provides, in pertinent part, that:

An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer … in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. 29 U.S.C. § 216(b) (emphasis added). The plain language of this statutory text expressly provides that, in filing a written consent form, an opt-in plaintiff joins an action to redress his or employer’s statutory liability. Indeed, Section 216(b) lacks any requirement that opt-in plaintiffs consent to join specific claims within the broader action.

In Prickett v. Dekalb County, 349 F.3d 1294, 1297 (11th Cir.2003), the Eleventh Circuit Court of Appeals interpreted the aforementioned statutory text in the same manner. The issue before the court in that case concerned whether opt-in plaintiffs were required to submit new consent forms after the named plaintiffs added a claim to the original complaint. Prickett, 349 F.3d at 1296. In concluding that the filing of new consent forms was not required, the Eleventh Circuit commenced its analysis by examining the text of 29 U.S.C. § 216(b). Id. at 1296–97. It noted that the plain language of Section 216(b) “indicates that plaintiffs do not opt-in or consent to join an action as to specific claims, but as to the action as a whole.” Id. at 1297 (emphasis added). The Eleventh Circuit added that, by referring to opt-in plaintiffs as “party plaintiffs,” “Congress indicated that opt-in plaintiffs should have the same status in relation to the claims of the lawsuit as do the named plaintiffs.” Id. See also Fengler v. Crouse Health Sys., Inc., 634 F.Supp.2d 257, 262–63 (N.D.N.Y.2009) (citing Prickett for this proposition and vacating a Magistrate Judge’s decision to include a paragraph in the consent form that limited the opt-in plaintiffs’ claims to only one of two asserted in the complaint).

After rejecting the defendant’s attempt o distinguish Prickett and Fengler, the court reasoned:

In the instant case, T–Mobile’s proposed consent form compels opt-in plaintiffs to make a decision that the FLSA does not mandate, that is, it requires them to select the specific claims they wish to assert. T–Mobile can readily obtain information concerning such claims after the opt-in plaintiffs have joined this action by using any one of the discovery devices contained in the Federal Rules of Civil Procedure. Indeed, in correspondence exchanged between the parties’ counsel prior to the filing of the proposed consent forms, counsel for T–Mobile acknowledged the availability of targeted interrogatories as a means of ascertaining the specific claims each opt-in plaintiff plans to assert in this lawsuit. (Docket No. 115, Ex. E.) In any event, because T–Mobile’s proposed consent form fails to comply with the FLSA’s express requirements, the court declines to approve it for delivery to members of the nationwide conditional class.

This case was before the court on the parties’ competing cross-motions for summary judgment. As discussed here, at issue was whether the defendants were liable to plaintiffs for after-hours off-the-clock side work they performed for defendant cleaning its warehouse. Although the court held that any issue of fact precluded summary judgment with regard to the amount of damages due, the court granted the plaintiff (who participated in the case) summary judgment as to liability and denied the defendant’s cross motion for summary judgment on liability.

The court recited the following facts as relevant:

Shortly after starting his work, Newsom [the plaintiff] made a special arrangement with his center manager, Alfred Taylor, whereby Newsom was permitted to clock out from work after his shift and clean CLS’s warehouse in exchange for a banana box of food. The work consisted of sweeping, mopping, picking up trash, and using a floor cleaning machine to clean the entire warehouse. Newsom Decl. at 1. According to Newsom, he worked approximately four to four and-a-half hours after each shift. In October 2008, Newsom was transferred to CLS’s Olive Branch, Mississippi center. There, Taylor remained his supervisor and allowed the banana-box program to continue. Not long after the move, Newsom found that he could not clean the new center alone and recruited Plaintiff Shanda Bramlett, another CLS employee, to assist him with the more arduous work. Taylor agreed to allow Bramlett to participate in the program, and Bramlett began assisting Newsom in March 2009. Bramlett’s work entailed sweeping floors, cleaning bathrooms, and performing other cleaning tasks. She claims that she worked an average of somewhere between two and three-and-a-half hours after each shift. Taylor assisted Newsom and Bramlett by moving pallets that obstructed their ability to clean the premises. From December 2010 through March 2011, no one was allowed to take anything from the warehouse. Nevertheless, for reasons unexplained in their depositions, both Newsom and Bramlett continued to perform their after-hours work, apparently without any guarantee of compensation.

Describing the issues at bar, the court explained:

It is undisputed that Newsom and Bramlett worked for CLS “off the clock” in exchange for a banana box of food. This case turns on a simple legal question: Does Newsom and Bramlett’s after-hours work constitute a violation of the FLSA? The Plaintiffs advance a simple and persuasive argument why the Court should answer affirmatively. Put simply, the Plaintiffs maintain that, at all times pertinent to the present suit, they worked as CLS employees with CLS’s knowledge and under CLS’s supervision. Judging from the record, CLS’s management appears to have initially adopted this view, at least with respect to Newsom, by sending him a check and an apology letter. Now at the summary-judgment stage of litigation, however, CLS takes a different view of the matter, offering two legal theories why the Plaintiffs cannot recover for their FLSA claims: (1) Newsom and Bramlett acted as independent contractors, not employees, when performing their after-hours work, and (2) even if Newsom and Bramlett were employees, they were properly compensated for their work with food.

Initially, the court rejected the defendant’s contention that the plaintiff performed his after-hours work for defendant as an independent contractor (as opposed to as an employee), thus requiring that all of plaintiff’s hours be treated cumulatively each week for determining defendant’s overtime obligations. Rejecting the defendant’s second contention- that the banana box of food constituted sufficient wages, in lieu of actual wages- the court reasoned:

CLS advances its second contention-that Newsom and Bramlett were compensated appropriately under the FLSA with a brief-and incomplete-reference to the definition of ‘wages’ in the statute, and therefore the Court will give this argument short shrift. Under the FLSA, the term ‘wages’ can include board, lodging, and other facilities as CLS suggests. 29 U.S.C. § 209(m). As an initial matter, it is unclear as to whether banana boxes of food fall within the categories of “board, lodging, or other facilities.” The statute does not mention food, sustenance, or any other similar term. Moreover, the statute continues that in order for “board, lodging, and other facilities” to constitute wages under the FLSA, they must be “customarily furnished by such employer to employees .” Id. (emphasis added). The Court declines to opine as to whether banana boxes of food are customarily furnished by CLS to its employees for cleaning services, and since CLS fails to make such an argument, the Court will dismiss it without prejudice. CLS may raise this argument subsequently with respect to damages, provided it advances the argument with cited legal authority.

Thus, the court granted plaintiff-Newsom’s motion for summary judgment as to liability, and left open the issue of damages.

The Plaintiffs, Certified Nursing Assistants (“CNAs”) for Defendant, claimed that they were required to work off the clock during automatically deducted meal breaks, during mandatory meetings and training sessions, and while performing mandatory data entry known as “dart charting.” The result of these policies was to allegedly deny the Plaintiffs wages and overtime. After the Plaintiffs amended their Complaint the Defendants filed a motion to dismiss regarding several of Plaintiffs’ allegations. As discussed here, the court denied Defendants’ motion as it pertained to Plaintiffs’ claims arising from Defendants’ policy of rounding their time to the nearest quarter of an hour, regardless of actual time worked.

Discussing the sufficiency of the rounding claim, the court explained:

“One of the Plaintiffs’ substantive allegations is that the Defendants have a practice of “reduc[ing] [their] employees’ work hours by rounding their hours to the nearest quarter hour of time to their detriment (i.e., the rounding did not average out to equally benefit Defendants and its employees over time) which results in Defendants not paying its employees for all time worked.” Doc. 51 at ¶ 112. Defendants cite federal regulations which expressly allow the practice of rounding to the nearest 15–minute increment. 29 C.F.R. § 785.48(b) (“For enforcement purposes this practice of [rounding to 5, 10 or 15–minute increments] will be accepted, provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.”). The Defendants submit Harding v. Time Warner, Inc. in support of their position that the Plaintiffs have not sufficiently pled a claim of improper rounding. No. 09cv1212–WQH–WMC, 2010 WL 457690 (S .D.Cal. Jan. 26, 2010). In Harding, the court found that, despite describing the allegedly improper rounding procedures in detail, Harding had failed to provide “specific factual allegations” showing that employees had been underpaid. Id. at *5. The Plaintiffs provided the following statements regarding rounding in their Amended Complaint:

112. Defendants further reduce its [sic] employees’ work hours by rounding their hours to the nearest quarter hour of time to their detriment (i.e., the rounding did not average out to equally benefit Defendants and its [sic] employees over time) which results in Defendants not paying its [sic] employees for all time worked. This practice results in Plaintiffs and all other similarly situated employees being denied wages including overtime premiums and Defendants’ illegal rounding practices are not de minimus. [sic]

113. Even though Defendants had a computerized timekeeping system in place and could have easily recognized and paid Plaintiffs’ and other similarly situated employees’ actual hours worked, Defendants deliberately disregarded the system’s records and rounded Plaintiffs’ and other similarly situated employees work time down to the nearest quarter of an hour.”

114. Defendants willfully and illegally rounded Plaintiffs’ and other similarly situated employees’ work time down to the nearest quarter of a [sic] hour.

Doc. 51 at ¶¶ 112–14 (legal conclusions in bold). Iqbal requires “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. The Plaintiffs allege that the rounding did not average out properly. They further allege that the Defendants maintain a computerized system which keeps time, but still chose to use rounding. Assuming the truth of these allegations, the Court can plausibly infer that the Defendants chose to round time because it would be more favorable than paying for actual time worked on a minute by minute basis, thus violating the averaging rationale inherent to rounding. While the Plaintiffs could have chosen to state more, to require them to plead, for example, specific minutes on specific days for which they were denied wages would be fact pleading inconsistent with Iqbal. Hamilton v. Palm, 621 F.3d 816, 817 (8th Cir.2010) (noting that “Iqbal did not abrogate the notice pleading standard of Rule 8(a)(2)”). The Defendants’ Motion to dismiss the Plaintiffs’ rounding claim is DENIED.”

This case was before the court on defendant’s motion to dismiss plaintiffs’ complaint for failure to state a claim. The plaintiffs, security guards employed by defendant, alleged that the defendant has failed to properly compensate them for pre- and post- shift work that defendant required them to perform as part of their jobs. In its decision, the court agreed, largely citing in apposite case law in support of its decision.

First, the court held that time spent performing pre- and post-liminary duties required by defendant, for which no compensation was received, was precluded by the portal-to-portal act. Accepting the facts underlying this claim, as required on the motion to dismiss the court explained:

“Throughout the relevant time period, Defendant ex-pected Plaintiffs “to be available to work before commencement of their shift, during their promised meal break and after completion of their assigned shift for work-related tasks.” Id. at ¶ 17. Plaintiffs per-formed pre-shift work including: receiving pass down instructions, checking equipment, reviewing post orders, collecting schedules, meeting with supervisors, guarding, monitoring, patrolling, inspecting, and surveying. Id. at ¶ 19. Plaintiffs regularly performed post-shift work that included: preparing logs and event reports, collecting schedules, meeting with supervisors and providing pass down instructions. Id. at ¶ 29. Such work was undertaken by Plaintiffs for approximately 15–30 minutes of pre-shift work each day and 15 minutes to two hours of post-shift work per week. Id. at ¶¶ 26, 36. Defendant knew that such work was regularly performed because “Defendant’s agents regularly encouraged, instructed, suffered and per-mitted” Plaintiffs to perform this work and observed them doing so. Id. at ¶¶ 22, 31. Plaintiffs did not receive full compensation for the pre-shift and post-shift work that they performed because Defendant’s timekeeping and pay practices improperly placed the burden on Plaintiffs. Id. at ¶ 23, 33. Defendants also failed to implement any rules, systems or procedures to prohibit Plaintiffs from performing such work or to ensure that they were properly paid for such work. Id. at ¶ 24, 34.”

Notwithstanding these detailed allegations, the court concluded “Plaintiffs do not detail how Defendant’s failed to compensate them for pre- and post-shift work” and dismissed the claim (without prejudice) on this basis.

Addressing plaintiffs’ second claim, regarding defendant’s failure to pay them for time (1 to 2 hours per week) they were required to spend cleaning their uniforms, in order to meet defendant’s dress code requirements, the court found this claim equally unavailing. After a brief discussion of recent case law regarding the definition of tasks that are integral to work (so as to make them compensible), the court summarily concluded that “[h]ere… while Plaintiffs may have been required to wear and therefore maintain their uniforms, such actions were not integral and indispensible to Plaintiffs’ principal activity, providing security.” In so doing, the court ignored the obvious parallels of the uniform maintenance to other cases where courts found that similar activities were integral (i.e. feeding, training and walking of K-9 dogs by police officers while “off-duty”). Given the fact that the defendant required the plaintiffs to wear these uniforms, and that they maintain the uniforms in a presentable fashion it is unclear how the court reached its conclusion in this regard.

It will be interesting to see whether the plaintiffs will appeal this decision, which seems to be out of line with prevailing authority outside of the Third Circuit regarding these issues.

These proceedings were before the Multi District Panel, pursuant to 28 U.S.C. § 1407. The defendants (Foot Locker) moved to centralize several pending cases, all arising from similar claims, in the Eastern District of Pennsylvania. At the time Foot Locker’s motion was made four actions were pending in four districts. Plaintiffs in all actions oppose centralization. Notwithstanding the opposition of all plaintiffs in all cases, the Panel granted Foot Locker’s motion.

Largely breaking from its prior jurisprudence (in granting the motion over opposition of multiple parties), the Panel reasoned:

“On the basis of the papers filed and hearing session held, we find that these actions involve common questions of fact, and that centralization in the Eastern District of Pennsylvania will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. No party disputes that these actions share factual questions arising out of allegations that Foot Locker routinely fails to pay retail employees wages for work they performed. These actions allege that (1) the timekeeping system used by Footlocker allows managers to modify or decrease the time recorded; and (2) Footlocker’s bonus policy encourages managers to force employees to work off-the-clock and to delete time recorded. As in In re Bank of America Wage and Hour Employment Practices Litigation, it appears that defendants’ timekeeping and labor budgeting policies and practices are corporate-wide and uniformly applied. See706 F.Supp.2d 1369, 1371 (J.P.M.L.2010). Discovery among these actions regarding defendants’ corporate labor budgeting and timekeeping policies therefore will overlap. This litigation, like In re Bank of America, is distinguishable from wage and hour dockets “in which the Panel has denied centralization, because the duties of the employees at issue appeared to be subject to significant local variances.” Id. at 1371, n.3 (citing In re Tyson Foods, Inc., Meat Processing Facilities Fair Labor Standards Act (FLSA) Litig., 581 F.Supp.2d 1374, 1375 (J.P.M.L.2008)).

Plaintiffs’ primarily argue that informal coordination is preferable to centralization since only four actions are pending and plaintiffs are represented by common counsel. Plaintiffs make a strong case against centralization but, on balance, particularly given the likely overlap in discovery and pretrial proceedings, we are persuaded that centralization will promote the just and efficient conduct of this litigation. Though a large number of actions are not presently before the Panel, also weighing in favor of centralization is that additional related actions alleging similar class claims in other states could well be filed. Centralization in these circumstances will have the benefit of eliminating duplicative discovery; preventing inconsistent pretrial rulings, including with respect to class certification; and conserving the resources of the parties, their counsel, and the judiciary.

We are persuaded that the Eastern District of Pennsylvania is the most appropriate transferee district. The first-filed Pereira action has been pending there since May 2007, and Judge J. Curtis Joyner is familiar with the issues in this litigation. Although the Pereira action has been pending for some time, discovery is ongoing and, given that plaintiffs in all actions are represented by common counsel, plaintiffs will not be prejudiced by transfer to the Eastern District of Pennsylvania.”

Thus, although the Panel noted that the plaintiffs made a “strong case” against centralization, it centralized the case nonetheless.

This case was before the Second Circuit on Plaintiff’s appeal of an order awarding Defendant summary judgment. Plaintiff asserted two distinct claims below: (1) that work performed on his PDA and in Defendant’s computer system (at home) extended his continuous workday such that Defendant’s failure to pay him for all time up to including such work was a violation of the FLSA; and (2) that he was entitled to be paid for off-the-clock work that he did not report because his supervisors instructed him not to. While the court affirmed summary judgment on the “continuous workday” claim, it reversed as to the off-the-clock claim, holding that “[a]t least where the employee’s falsifications were carried out at the instruction of the employer or the employer’s agents, the employer cannot be exonerated by the fact that the employee physically entered the erroneous hours into the timesheets.”

With respect to the off-the-clock claims, the relevant facts cited by the court were:

“[plaintiff] asserts that he falsified his timesheets because his supervisors instructed him not to record more than forty hours per week. He testified that at monthly meetings, “there was always a point that [Idigo] and Mr. Davolt and [another manager] would always indicate that we [Retail Specialists] were not to put more than forty hours on our time sheet,” and that Davolt “told all of the reps that they were only to record forty hours a week, … no matter what they worked during that particular week.” Kuebel further testified that during a personal discussion with Davolt on February 22, 2007, Davolt said to him, “you can’t work overtime, you’re only supposed to put forty hours on your timecard.”

Discussing the viability of the off-the-clock claims that Plaintiff asserts he was owed overtime wages for time he allegedly worked, but admittedly did not report, the court first discussed the general legal principles applicable to FLSA claims where the Plaintiff alleges Defendant failed in its recordkeeping obligations (to maintain accurate time records), under Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686–87 (1946). The court below had determined that Plaintiff was not entitled to Anderson’s lenient burden of proof where, as here, he acknowledged that he falsified his own records. However, the Second Circuit disagreed, holding:

“At least where the employee’s falsifications were carried out at the instruction of the employer or the employer’s agents, the employer cannot be exonerated by the fact that the employee physically entered the erroneous hours into the timesheets. As the district court emphasized, Kuebel admits that it was he who falsified his timesheets, notwithstanding B & D’s official policy requiring accurate recordkeeping. But his testimony—which must be credited at the summary judgement stage—was that he did so because his managers instructed him not to record more than forty hours per week. He specifically testified that at company meetings and during discussions with one of his supervisors, it was conveyed to him that he was not to record overtime no matter how many hours he actually worked. In other words, Kuebel has testified that it was B & D, through its managers, that caused the inaccuracies in his timesheets. While ultimately a factfinder might or might not credit this testimony, that is a determination for trial, not summary judgment. In sum, we hold that because Kuebel has presented evidence indicating that his employer’s records are inaccurate—and that although it was he who purposefully rendered them inaccurate, he did so at his managers’ direction—the district court should have afforded Kuebel the benefit of Anderson’s “just and reasonable inference” standard. See Allen, 495 F.3d at 1317–18 (finding just and reasonable inference standard applicable at summary judgment where plaintiffs had not recorded overtime, but “testified that they were discouraged from accurately recording overtime work on their time sheets, and were encouraged to falsify their own records by submitting time sheets that reflected their scheduled, rather than actual, hours”). A contrary conclusion would undermine the remedial goals of the FLSA, as it would permit an employer to obligate its employees to record their own time, have its managers unofficially pressure them not to record overtime, and then, when an employee sues for unpaid overtime, assert that his claim fails because his timesheets do not show any overtime.”

Given the procedural posture of the case, the court found that Plaintiff had presented an issue of fact for the jury to decide, thus rendering summary judgment inappropriate, reasoning:

“Ultimately, the dispute as to the precise amount of Kuebel’s uncompensated work is one of fact for trial. As stated above, a plaintiff establishes a violation of the FLSA by proving that he performed uncompensated work of which his employer was or should have been aware. The Anderson test simply addresses whether there is a reasonable basis for calculating damages, assuming that a violation has been shown. Brown, 534 F.3d at 596. It does not entitle an employer to summary judgment where the employee’s estimates of his uncompensated overtime are somewhat inconsistent.

The district court further held that, in any event, the following evidence was sufficient to “negate the inference that [Kuebel] had performed work off-the-clock”: (1) B & D’s written policies and training materials stating that time worked must be accurately recorded; (2) Kuebel’s own time records; and (3) Beacon reports for Kuebel showing low in-store hours. Kuebel II, 2010 U.S. Dist. LEXIS 46533, at *39–40. We disagree. B & D’s evidence raises factual and credibility questions for trial, but it does not afford a basis for summary judgment. First, while the existence of B & D’s official policies requiring accurate timekeeping may detract from Kuebel’s credibility, it does not entitle B & D to judgment as a matter of law in light of Kuebel’s testimony that he was instructed by his managers not to record all of his hours. Second, that Kuebel’s timesheets do not show any overtime does not resolve the central question necessitating a trial, which, as we have seen, is whether Kuebel worked overtime but did not record it at his managers’ behest. Finally, to the extent that Kuebel’s Beacon hours—or, for that matter, his manager’s testimony that the condition of his stores was often subpar—suggest that Kuebel typically worked less than forty hours a week, such evidence also raises a factual issue for trial.”

Similarly, the court held that Plaintiff had created an issue of fact despite Defendant’s contention that it lacked knowledge of any unrecorded off-the-clock hours allegedly worked by Plaintiff, stating:

“We conclude that Kuebel has raised a genuine issue of material fact as to whether B & D knew he was working off the clock. Kuebel testified that on several occasions, he specifically complained to his supervisor, Davolt, that he was working more than forty hours per week but recording only forty. The district court discounted Kuebel’s testimony, relying on the fact that he never lodged a formal complaint using B & D’s anonymous reporting hotline. Id. at *44–45. But while that fact might conceivably hurt Kuebel’s credibility at trial, it does not warrant summary judgment for B & D.”

While it remains to be seen whether Plaintiff will actually prevail on his claims, given the FLSA’s non-delegable duty on employers, there can be little question that the Second Circuit reached the correct conclusion in holding that an employer who requires an employee to falsify his or her time records may not then benefit from such falsification. Stay tuned to see how this one turns out…

Defendants Bank of America moved, pursuant to 28 U.S.C. § 1407, for coordinated or consolidated pretrial proceedings of this litigation, consisting of 12 different related actions, in the Central District of California. Plaintiffs in two actions support the motion. Plaintiffs in five actions supported centralization of some actions, but suggest excluding certain actions from centralized proceedings. Plaintiffs in five other actions oppose centralization or inclusion of their actions in centralized proceedings.Plaintiffs, in the first instance or in the alternative, suggested the Central District of California, the Northern District of California, or the District of Kansas as transferee district.

Significantly, the Court noted:

“All of these cases contain allegations that Bank of America routinely fails to pay its employees for off-the-clock overtime work in violation of the Fair Labor Standards Act and/or state law. To be sure, there are differences among the cases. However, as a general rule the similarities seem to outweigh the differences. As we explain below more specifically, we believe that centralization under Section 1407 will eliminate duplicative discovery; prevent inconsistent pretrial rulings, including with respect to class certification; and conserve the resources of the parties, their counsel, and the judiciary.”

Additionally, the Court explained that Bank of America acknowledged its timekeeping policies were the same nationwide for the employees in question. Therefore, the Court concluded that the cases were ripe for centralization. Explaining that the discovery for all cases was most suitable to be centralized in Kansas, the Court reasoned:

“The parties have suggested a number of acceptable transferee districts. For instance, Bank of America makes a strong argument for the Central District of California as the central focus of the litigation. For the following reasons, however, we conclude that the District of Kansas would be the best forum. The first-filed Brawner action is pending in that district, with a motion for class certification currently pending. The district is centrally located for the parties and the likely discovery in this nationwide litigation. It has docket conditions that are significantly more favorable than the other primary contenders for this litigation. More specifically and of paramount importance, Judge John W. Lungstrum has the experience, energy and time to handle this litigation efficiently.”

The Boston Globe is reporting that the United States’ largest retailer, Wal-Mart has agreed to settle a collective action in Massachusetts for approximately $40 Million.

“Wal-Mart Stores Inc., the world’s largest retailer, has agreed to pay $40 million to as many as 87,500 current and former employees in Massachusetts, the largest wage-and-hour class-action settlement in the state’s history.

The class-action lawsuit, filed in 2001, accused the retailer of denying workers rest and meal breaks, refusing to pay overtime, and manipulating time cards to lower employees’ pay. Under terms of the agreement, which was filed in Middlesex Superior Court yesterday by the employees’ attorneys, any person who worked for Wal-Mart between August 1995 and the settlement date will receive a payment of between $400 and $2,500, depending on the number of years worked, with the average worker receiving a check for $734…

The Massachusetts case is similar to many others that have been brought against the retail behemoth by employees across the country, most alleging that the Bentonville, Ark.-based company violated laws by requiring employees to work through breaks, to work beyond their regular shifts, and similar practices. Wal-Mart has denied the allegations, but in December, the merchant agreed to pay up to $640 million to settle 63 federal and state class-action wage-and-hour lawsuits.”

The Quad City Times is reporting that, “[a] class-action lawsuit filed eight years ago in Clinton County accusing Wal-Mart of intimidating employees into working overtime without pay has been settled, with the company agreeing to pay $11 million. The lawsuit was filed in June 2001 by Sally Mussmann and Taylor Vogue, two former employees of the Wal-Mart store in Clinton.”

The article stated that, “[t]he lawsuit alleged that Wal-Mart gave its employees tasks that were impossible to complete during their scheduled work hours, then intimidated them into working extra hours without pay to complete their assignments.”